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ELCAllowedEnvironment & Land Case 16 of 2018· [2023] KEELC 20599 (KLR)

Nasiuma v Kakai

Environment and Land Court
12 October 2023
ECE.C. CHERONO
1,385 words in judgment
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The bottom line

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A Kenyan land court allowed a defendant to amend her defence and add a counterclaim, confirming courts freely allow timely amendments when the other side can be compensated by costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (E.C. Cherono, J) determined a notice of motion dated June 7, 2023 by the defendant, Margaret Namaemba Kakai, seeking leave to amend her pleadings and to adopt a draft amended defence and counterclaim, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 of the Civil Procedure Rules. The defendant explained that her previous advocates had filed the original defence and that her new advocates required the amendment to introduce a counterclaim seeking a permanent injunction and orders of eviction, which she said would enable the court to determine the case to finality. The plaintiff was served but filed no response. The court framed a single issue: whether the application was merited. Reviewing Order 8 Rule 5(1) and the overriding objective provisions, the court held that amendments should be freely allowed before hearing where they cause no injustice that cannot be compensated by costs, do not introduce time-barred causes of action, do not alter the character of the suit, and are not made in bad faith or to abuse process. Relying on Institute for Social Accountability and Daniel Ngetich v KRep Bank, the court found the proposed injunction and eviction counterclaim raised triable issues, would not prejudice the plaintiff, and would help determine the real controversy. The application was allowed; the defendant was directed to file the amended defence within 7 days, with costs of the application to the plaintiff.

Key legal issues

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01

Whether leave should be granted to the defendant to amend her defence and file a counterclaim out of time

Holding

The application was merited; the proposed amendment introduced triable issues (permanent injunction and eviction orders), caused no prejudice to the plaintiff, and would assist the court in determining the real issues in controversy.

Reasoning

Order 8 Rule 5(1) confers a wide discretion to allow amendments at any stage. Amendments should be freely allowed where they do not work injustice, are necessary to determine the real questions in controversy, are not made in bad faith, and any prejudice can be compensated by costs. The proposed counterclaim raised triable issues and would avoid multiplicity of suits without altering the character of the defence.

p. 3

Legal principles established

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  • Amendments sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other party can be compensated by costs.
  • Courts will not normally grant an amendment that would introduce a new cause of action which is time-barred.

Court orders

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  1. 1.Leave granted to the Defendant to amend her pleadings
  2. 2.Applicant to file her Amended Defence within 7 days of the ruling
  3. 3.Plaintiff awarded the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Limitation of Actions ActCap 22 (matter heading)

Cases cited (6)

  • Bosire Ongero Vs Royal Media Services
    2015 KLR

    Restatement that amendments should be freely allowed where they do not work injustice and are necessary to determine real questions in controversy.

  • Ochieng and 2 others v First National Bank of Chicago
    (1995) eKLR

    Support for the liberal approach to amendment of pleadings.

  • St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR

    Support for the liberal approach to amendment of pleadings.

  • Nzirane V Lukwago
    1971 EA 328

    Amendment should not be allowed where it would create a new cause of action which is time-barred.

  • Institute for Social Accountability & Another V Parliament of Kenya and 3 Others
    2014 KLR

    Object of amendment is to enable litigation on the real facts, not on false hypotheses of facts already pleaded.

  • Daniel Ngetich & Another Vs KRep Bank Limited
    2013 KLR

    Court should be liberal in granting leave to amend but never where it causes injustice, irreparable loss or abuses court process.

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nasiuma v Kakai", Case Analysis (2023). Environment & Land Case 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20599/eng@2023-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.